Written by Catherine Magennis, Senior Counsel, Esq., N.C. Board Certified Immigration Law Specialist.
A new decision from the Board of Immigration Appeals (BIA) has significantly changed the potential consequences of international travel for certain foreign nationals who have accrued unlawful presence in the United States.
In Matter of Delcarmen-Lara, decided Aug. 13, 2026, the BIA held that leaving the United States pursuant to a grant of advance parole constitutes a “departure” for purposes of the unlawful presence bar under the Immigration and Nationality Act (INA).
In doing so, the BIA expressly overruled Matter of Arrabally and Yerrabelly, a 2012 decision that had protected certain foreign nationals traveling on advance parole from triggering the unlawful presence bars which can make certain foreign nationals inadmissible to the U.S. for a period of up to 10 years.
The decision represents a fundamental shift in more than a decade of established immigration practice and could have significant consequences for DACA recipients, Temporary Protected Status (TPS) beneficiaries, adjustment of status applicants and others who have accrued unlawful presence and are considering international travel.
Foreign nationals who could be affected should carefully review their immigration and unlawful presence history with experienced immigration counsel before departing the United States, even if they have already received authorization to travel.
Why does departure from the United States matter?
The INA imposes significant consequences on certain foreign nationals who accrue unlawful presence in the United States and subsequently depart the country.
Generally, a foreign national who accrues more than 180 days but less than one year of unlawful presence and then departs the United States can become subject to a three-year bar to re-admission. A person who accrues one year or more of unlawful presence and then departs can become subject to a 10-year bar before they are eligible to return to the U.S.
Importantly, accruing unlawful presence does not, by itself, trigger these bars. The subsequent departure from the United States after the requisite period of unlawful presence is what generally triggers the three- or 10-year bar.
That distinction has made the definition of a “departure” particularly important for foreign nationals traveling with advance parole.
How did advance parole work before Matter of Delcarmen-Lara?
For about 14 years, Matter of Arrabally and Yerrabelly provided an important protection for certain foreign nationals who had accrued unlawful presence but received advance parole.
In that 2012 decision, the BIA held that temporarily leaving the United States pursuant to a grant of advance parole did not constitute a “departure” for purposes of the unlawful presence bars.
In practice, the decision meant that certain foreign nationals could receive government authorization to travel internationally and return to the United States without that authorized trip itself triggering the three- or 10-year unlawful presence bar.
This became particularly important for some foreign nationals who initially entered the United States without inspection or who overstayed their prior immigration status. Depending on the individual’s circumstances, traveling with advance parole and subsequently being paroled into the United States could also help satisfy the “inspected and admitted or paroled” requirement for adjustment of status under INA § 245(a).
That framework had been in place since 2012. Delcarmen-Lara has now changed that interpretation.
What changed under Matter of Delcarmen-Lara?
In considering the Delcarmen-Lara case, the BIA revisited its interpretation of the word “departure.”
The Board concluded that the statutory language does not create an exception for a person who leaves the United States pursuant to advance parole. Neither “depart” nor “departure” is specifically defined in the relevant section of the INA, and the BIA determined that the ordinary meaning of the term should apply.
The Board also looked elsewhere in the INA, noting that Congress specifically addressed the consequences of advance parole and other types of departures in certain statutory provisions. The BIA reasoned that Congress could have similarly excluded advance parole from the unlawful presence provision but did not do so.
The result is a significant change. A departure from the United States pursuant to advance parole can now trigger the unlawful presence bar for certain foreign nationals.
Which foreign nationals face the greatest risk?
The decision is particularly important for foreign nationals who have accrued more than 180 days of unlawful presence in the United States.
DACA recipients could be among those significantly affected. They may have accrued unlawful presence before receiving DACA and could therefore face consequences if they depart the United States after receiving advance parole.
TPS beneficiaries should also approach international travel carefully. Since 2022, USCIS has used a TPS-specific travel authorization process rather than traditional advance parole for certain TPS beneficiaries. Delcarmen-Lara does not expressly articulate how its decision applies to TPS authorized travel.
However, the BIA’s broader reasoning about what constitutes a “departure” raises important questions about the consequences of international travel for TPS beneficiaries who previously accrued unlawful presence. Those individuals should seek legal advice from experienced counsel before traveling.
The decision could also be relevant to certain adjustment of status applicants and others who may be eligible for advance parole but have previously accrued unlawful presence.
Ultimately, the consequences will depend on the individual’s immigration history, including how and when they entered the United States, whether they subsequently maintained lawful status or another period of authorized stay, how much unlawful presence they accrued, and what immigration benefits they may seek in the future.
What about advance parole travel before Aug. 13, 2026?
One of the most important parts of Delcarmen-Lara is the BIA’s decision to apply its new interpretation prospectively.
The Board recognized that it was expressly overruling longstanding precedent and that foreign nationals had relied on the previous rule. It also acknowledged that the new holding represents a significant change in both the interpretation of “departure” and potentially an individual’s eligibility for adjustment of status.
The BIA therefore determined that the new rule should not apply retroactively.
As a result, the decision should not undo the protection afforded under Arrabally and Yerrabelly to qualifying advance parole travel completed before the new decision.
However, some scenarios remain less clear. For example, Delcarmen-Lara does not specifically address an individual who departed the United States before Aug. 13, 2026, but did not return until after the decision was issued.
The timing could be significant because an individual in that situation made the decision to depart while Arrabally and Yerrabelly remained controlling precedent. Because the BIA did not expressly address that scenario, affected foreign nationals should seek legal advice to discuss their individual circumstances before traveling.
Further agency guidance or litigation could provide additional clarity on this and other questions raised by the decision.
Does this mean foreign nationals should no longer use advance parole?
Not necessarily. Advance parole remains available, and Delcarmen-Lara does not make all international travel with advance parole inadvisable.
Instead, the decision makes an individual’s unlawful presence history a critical part of the travel analysis.
A foreign national who has maintained lawful status and has not accrued unlawful presence may face a very different analysis than someone who accrued unlawful presence before obtaining their current immigration benefit.
For those with unlawful presence, however, the consequences can be substantial. An individual could potentially trigger a three- or 10-year bar by departing the United States. That inadmissibility issue could then affect the person’s ability to return or create an additional obstacle when pursuing adjustment of status or another immigration benefit.
Advance parole also does not guarantee that an individual will be permitted to re-enter the United States.
As a result, the existence of a valid travel document should not, by itself, be interpreted as confirmation that international travel carries no immigration risk.
What happens if someone triggers an unlawful presence bar?
Triggering a three- or 10-year bar does not necessarily mean there are no immigration options available. Certain foreign nationals may qualify for a waiver, but eligibility is limited and approval is not automatic.
Generally, an applicant seeking a waiver of the unlawful presence bar must demonstrate extreme hardship to a qualifying relative, typically a U.S. citizen or lawful permanent resident spouse or parent. This requirement can create significant challenges for individuals who do not have a qualifying relative.
Even when a waiver may be available, approval is discretionary and depends on the individual’s circumstances. Foreign nationals who could trigger an unlawful presence bar should therefore consult experienced immigration counsel before departing the United States to evaluate their options and the potential consequences of travel.
What should foreign nationals consider before international travel?
Foreign nationals who have received or are considering applying for advance parole should consult experienced immigration counsel before making international travel plans, particularly if there is any possibility they have accrued unlawful presence.
Before departure, a careful review should consider the individual’s entire immigration history, including:
- How much unlawful presence, if any, the individual has accrued
- Whether the proposed departure could trigger a three- or 10-year bar
- Whether the individual has an outstanding removal order
- Whether a waiver could be available if a bar is triggered
- Whether the individual has the qualifying relative required for a waiver
- How international travel could affect a pending or future adjustment of status application
The consequences of a departure can be difficult to address after the individual has already left the United States. Evaluating those consequences before travel is therefore critical.